ORS 137.123(5) governs the imposition of consecutive sentences in cases
like this where the convictions for which such sentences are imposed arise "out of a
continuous and uninterrupted course of conduct." In such situations, the court has
discretion to impose consecutive sentences only if it finds:

"(a) That the criminal offense for which a consecutive sentence is
contemplated was not merely an incidental violation of a separate statutory
provision in the course of the commission of a more serious crime but
rather was an indication of defendant's willingness to commit more than one
criminal offense; or

"(b) The criminal offense for which a consecutive sentence is
contemplated caused or created a risk of causing greater or qualitatively
different loss, injury or harm to the victim or caused or created a risk of
causing loss, injury or harm to a different victim than was caused or
threatened by the other offense or offenses committed during a continuous
and uninterrupted course of conduct."

In State v. Ice, 343 Or 248, 267, 170 P3d 1049 (2007), the Supreme Court held that, to
comply with the Sixth Amendment as interpreted by the United States Supreme Court in
Blakely, a trial court cannot impose consecutive sentences under ORS 137.123(5) unless
the facts required by that statute are submitted to a jury and proved beyond a reasonable
doubt. That did not occur in this case. Because we determine error by reference to "the
law existing at the time the appeal is decided, and not as of the time of trial," State v.
Jury, 185 Or App 132, 136, 57 P3d 970 (2002), the imposition of consecutive sentences
in this case was plain error: It is obvious and indisputable legal error not to require that
the predicate facts be submitted to a jury and proved beyond a reasonable doubt, and it is
apparent on the face of the record that the trial court did not do so. Ailes v. Portland
Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991).

Therefore, we must decide whether to exercise our discretion to review and
correct that error. That decision is made on a case-by-case basis following the factors set
out in Ailes, 312 Or at 382 n 6, along with the considerations discussed in Ramirez, 343
Or at 513-14, and State v. Fults, 343 Or 515, 523, 173 P3d 822 (2007). Factors that bear
on the exercise of discretion include:

"[T]he competing interests of the parties; the nature of the case; the gravity
of the error; the ends of justice in the particular case; how the error came to
the court's attention; and whether the policies behind the general rule
requiring preservation of error have been served in the case in another way,
i.e., whether the trial court was, in some manner, presented with both sides
* * *."

Ailes, 312 Or at 382 n 6.

In addressing the "competing interests of the parties" factor, the Supreme
Court has indicated that a defendant's interest in resentencing is minimal if "there is no
legitimate debate" about whether a departure sentence is warranted. Moreover, the state
"has a significant interest in avoiding a second, unnecessary sentencing hearing."

Ramirez, 343 Or at 513. Similarly, the court explainedthat the "gravity of the [trial
court's] error" is minimal where, on the record, no reasonable factfinder could conclude
anything other than that facts existed to support the sentence imposed. Id. Further, the
court stated that where "the evidence on a sentencing factor is overwhelming, it would not
advance the ends of justice to remand for an unnecessary hearing." Id. at 514. In Fults,
343 Or at 523, the Supreme Court listed additional factors that bear on the analysis,
including whether there was a "possibility that [a] defendant made a strategic choice not
to object to [a] sentence" and "the interest of the judicial system in avoiding unnecessary
repetitive sentencing proceedings."

Under those standards, we conclude that we should not exercise our
discretion in this case. The jury found defendant guilty of stealing a car from one victim
and possessing an altered key that would facilitate stealing other cars--a key, that is, that
had been altered to be "more accessible to the tumblers in more different types of
ignitions of vehicles." Thus, one conviction was for inflicting harm on a particular
victim, the owner of the stolen car, and the other was for a crime that "created a risk of
causing loss, injury or harm to a different victim * * *," ORS 137.123(5)(b), that is, other
car owners. The possibility that a jury would find the necessary factual predicate to
consecutive sentences is therefore "overwhelming"; there could be "no legitimate debate"
that possession of the shaved-down key created the risk of harm to other car owners.
Ramirez therefore compels us to refrain from exercising our discretion to review the
court's error.